The Obfuscation Report

Dedicated to seeking out the misinformation of the right wing machine.
Main Entry: 1lib·er·al
Pronunciation: 'li-b(&-)r&l
Function: adjective
1. Liberal -- Not limited to or by established, traditional, orthodox, or authoritarian attitudes, views, or dogmas; free from bigotry.
2. Favoring proposals for reform, open to new ideas for progress, and tolerant of the ideas and behavior of others; broad-minded.

Saturday, February 18, 2006

The North Carolina Republican Party asked its members this week to send their church directories to the party, drawing furious protests from local and national religious leaders.

"Such a request is completely beyond the pale of what is acceptable," said the Rev. Richard Land, head of the Ethics and Religious Liberty Commission of the Southern Baptist Convention.

During the 2004 presidential race, the Bush-Cheney campaign sent a similar request to Republican activists across the country. It asked churchgoers not only to furnish church directories to the campaign, but also to use their churches as a base for political organizing.

The tactic was roundly condemned by religious leaders across the political spectrum, including conservative evangelical Christians. Ten professors of ethics at major seminaries and universities wrote a letter to President Bush in August 2004 asking him to "repudiate the actions of your re-election campaign," and calling on both parties to "respect the integrity of all houses of worship."

Officials of the Republican National Committee maintained that the tactic did not violate federal tax laws that prohibit churches from endorsing or opposing candidates for office, and they never formally renounced it. But Land said he thought the GOP had backed down.

"I heard nothing further about it, so my assumption was that it stopped, at least at the national level," he said.

Yesterday, the Greensboro News & Record reported that the North Carolina Republican Party was collecting church directories, and it quoted two local pastors as objecting to the practice. The Rev. Richard Byrd Jr. of Cornerstone Baptist Church in Greensboro said anyone who sent in a directory "would be betraying the trust of the membership," and the Rev. Ken Massey of the city's First Baptist Church said the request was "encroaching on sacred territory."

Chris Mears, the state party's political director, made the request in a Feb. 15 memo titled "The pew and the ballot box" that was sent by e-mail to "Registered Republicans in North Carolina."

Mears said the "Republican National Committee has completed a study on grass-roots activity that reveals that people who regularly attend church usually vote Republican when they vote."

"In light of this study's findings, it is imperative that we register, educate and get these potential voters from the pew to the ballot box. To do this we must know who these people are," the memo continued.

"I am requesting that you collect as many church directories as you can and send them to me in an effort to fully register, educate and energize North Carolina's congregations to vote in the 2006 elections," it said.

It added that the "North Carolina Republican Party holds your church's directory in strict confidence" and will not use it "to solicit church members for any other reason."

William Peaslee, the party's chief of staff, told the Greensboro newspaper that Republicans also gather lists of gun owners and military families. "In doing voter registration, you always go to where you base is," he said. Peaslee did not return messages from The Washington Post yesterday.

JURIST Guest Columnist Peter Shane of Moritz College of Law, Ohio State University, says that decisions by the Republican leaders of two congressional committees not to launch probes into warrantless NSA surveillance of Americans contrary to FISA, the Foreign Intelligence Surveillance Act, reflect a serious breakdown in the constitutional system of checks and balances between different branches of government...

The apparent refusal of two congressional committee chairs to investigate the NSA’s defiance of the Foreign Intelligence Surveillance Act in conducting warrantless electronic surveillance of Americans reveals once again the apparent breakdown in external checks and balances when it comes to the Bush Administration’s ambitions for executive authority. This is all the more alarming because conscientious legal interpretation, perhaps the primary internal check on the conduct of the executive, apparently broke down long ago.One of two Administration arguments for the legality of its program of warrantless electronic surveillance is that such spying was implicitly authorized by the 2001 resolution for the Authorization for the Use of Military Force in Afghanistan. The AUMF supposedly provides the statutory authority for warrantless surveillance that is an express exemption from the requirements of the Foreign Intelligence Surveillance Act.

Among the many problems with this argument is the fact that Congress, when it enacted FISA, actually thought about how to handle electronic surveillance during wartime. Under FISA, the President is allowed to “authorize electronic surveillance . . . to acquire intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress.” The obvious reason was to give Congress two weeks to decide what variations in the FISA regime ought be implemented in law to give the President continuing legal authority to conduct surveillance, but in circumstances appropriate to wartime.

Of course, Congress did not intend the AUMF as a declaration of war, legally speaking. And it did not change FISA to eliminate the warrant requirement for domestic spying. So, in order to accept the Administration’s argument, you have to believe something like this: In enacting the AUMF, which does not say a word about declaring war or expanding wiretapping, Congress implicitly authorized the President to conduct warrantless surveillance for an indefinite period of time, even though Congress, when it explicitly considered in 1978 the scope of presidential authority after a formal declaration of war, limited his authority to conduct warrantless surveillance to a period of 15 days. Such an argument is logically and legally absurd.

It follows in the footsteps, however, of the Administration’s equally specious lawyering on the question of torture. In the now infamous “Torture Memo” of 2002, the Justice Department’s Office of Legal Counsel offered a preposterously narrow reading of the statute banning acts intended to provoke “severe physical or mental pain and suffering.” With regard to physical harms, OLC would have limited the ban’s purview to acts inflicting harms that “rise to the level of death, organ failure, or serious impairment of body functions.” The sole legal authority on which that fanciful reading is founded is a citation to an entirely unrelated statute describing the physical harms that entitle people to certain emergency medical health benefits.

Executive branch lawyers will naturally be mindful of the interests of the Presidency in deciding how to interpret the constitutional and statutory law of the United States. But there is a line between scrupulous attention to the legitimate interests of your client and what might be called pants-on-fire lawyering – taking positions so plainly at odds with legal judgment and common sense that their absurdity verges on downright dishonesty. In many critical areas of foreign and military policy, the executive functions virtually free of public scrutiny. In such sensitive areas, conscientious lawyering within the executive branch is pretty much our only institutional check to insure observance of the rule of law. When Justice Department lawyers proffer incompetent legal positions in defense of the President’s supposed discretion to do whatever he feels like, they are truly complicit in subverting the Constitution.

A recurring question in the FISA-gate debate is why the executive branch, which actually has emergency authority under FISA to conduct warrantless surveillance, did not use it. This seems especially mysterious given that the President and Attorney General insist the NSA has listened in only on conversations involving parties who belong to or are associated with al Qaeda.I actually have a guess about this, and I emphasize it is only a guess. The question to ask is, how did the government know that it was listening on conversations of this kind. My hypothesis is that they were using a technique called “pattern recognition.” That is, using computers to sift through data about thousands of telephone communications – things like call length, points of origin and reception, and so on – as well as word sampling from the conversations themselves, the NSA developed an algorithm for which patterns would likely be characteristic of al Qaeda-related phone calls. If I am right, then the following two things would also be true:1. The Administration can accurately say that it limited its “listening” to al Qaeda-related phone calls only if you don’t count the original computer surveillance of the contents of phone calls as “listening.”

2. The information that led to the identification of certain phone calls as al Qaeda-related did not include information specific to the actual parties to the phone call. The information was only a “pattern,” which, judging from the results, typically was not well designed to yield fruitful “hits.”

The reason I think this is a decent guess is that FISA would not permit the computerized “listening in” that I suspect has occurred, and it’s not clear whether the FISA court would accept pattern evidence as the sole basis for establishing probable cause that a phone call would actually yield foreign intelligence information. The court might also have rebelled against the process that yielded the pattern information in the first place. That would explain why the Administration did not rely on the court.

What it fails to explain – again, if my guess is right – is why the Administration did not ask for an amendment to FISA to allow this sort of program. With Republican majorities in both Houses and the Administration’s skill in the politics of national security, what were they afraid of?The Republican Intelligence Committee chairs are apparently willing to hold hearings into the potential need for amending FISA. Perhaps the Administration’s requests for amendments will offer some clue as to what is already happening.

Peter Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies at Moritz College of Law, Ohio State University

The uproar on Capitol Hill over President Bush's secret program to use the National Security Administration to spy on American citizens without a warrant continues to grow. But the NSA program - and the President's defense of it - are much more worrisome than many in Washington realize.

Under the Foreign Intelligence Surveillance Act (FISA), the President is prohibited from domestic spying on U.S. citizens without a warrant. To ease the President's ability to obtain such warrants, however, the FISA establishes a special court with streamlined procedures and relatively lenient standards. Yet the President chose simply to ignore the requirements of FISA.

The administration makes two arguments to support the spying program. The first is specious. The second is nothing less than a threat to the rule of law.

The first argument is that Congress "implicitly authorized" Bush to spy on citizens by the Authorization for the Use of Military Force (AUMF), the law passed right after 9/11 to authorize military action against Al Qaeda.

Of course, the text of the AUMF says absolutely nothing about domestic surveillance. FISA, by contrast, comprehensively regulates wiretapping for intelligence purposes, including detailed provisions on domestic surveillance during times of war.

Under standard principles of statutory interpretation, a general law is not read to replace an earlier, more specific law in the absence of some evidence that Congress intended to change the law. But nothing in the AUMF's text or legislative history indicates a congressional intent to override the detailed, carefully constructed FISA procedures.

In fact, during deliberations on the AUMF, Congress explicitly rejected an administration proposal to include a grant of authority to the President to exercise domestic war-making powers. Now Bush claims the statute empowers him in precisely the way Congress refused.

"Implicitly authorized" apparently should be taken to mean "lacking any basis in law."

In recognition of the weakness of the first argument, the administration offers another. This one, too, lacks legal foundation. More troubling still is that, if accepted, the President's argument would undermine the foundations of our system of checks and balances.

The administration says that the president does not need authority from Congress because the he has "inherent power" under the Constitution as Commander-in-Chief to take any action necessary, at home or abroad, to preserve national security.

"Inherent" powers? "Implicit" authorization? It makes one long for the good old days when President Bush pledged his allegiance to a philosophy of "strict" construction.

President Truman made the same "inherent powers" argument in the Supreme Court to defend of his seizure of U.S. steel mills during the Korean War. Under federal law, the executive could seize property under certain circumstances, but Truman elected to take over the mills without following the statutory procedures. As Commander-in-Chief, he claimed to have the implicit power to seize private property if necessary to support the war effort, without following contrary legislation that was in his view too burdensome.

In a landmark decision, Youngstown Sheet & Tube v. Sawyer, the Supreme Court rejected Truman's argument and held the seizure of the steel mills was unconstitutional.

Out of the Youngstown case came what has become the settled method of determining the boundaries of executive power under the Constitution. Under this framework, executive power is at its strongest when the president acts with the consent of Congress. When Congress and the executive are aligned, the President acts with the combined authority of both branches.

Conversely, the President's power is at its "lowest ebb" when the President acts contrary to the will of Congress. Then the President can only act if the Constitution grants him, and him alone, authority to govern in the relevant area.

In the steel seizure case, the president did not have "exclusive" authority to take private property or regulate industrial relations. Congress' authority in this area was well established, as evidenced by the seizure laws Truman ignored.

Nor does the Constitution vest President Bush with "exclusive" authority over domestic surveillance. Congress has a long-recognized role in regulating domestic searches and seizures, including surveillance in time of war. The FISA itself is a reflection of that authority, and that law specifically criminalizes electronic spying without a warrant.

And there's the rub. Under the "inherent powers" argument, the President's power is so broad that he can even violate the criminal laws. And he can do so covertly and without submitting to oversight by the other branches of government. But if the President can secretly ignore FISA -- which was enacted explicitly to limit surveillance by the executive branch -- what laws still bind him?

Logically, the President's inherent powers would allow him to violate any law so long as some tie to national security can be asserted.

Indeed, the President has already made clear that he believes the scope of his inherent powers permit him to violate other laws than FISA. When he signed the recently enacted McCain Amendment forbidding the torture of detainees, for example, Bush declared that his "inherent authority" as Commander-in-Chief still permitted him to employ torture at his discretion.

Quite literally, President Bush claims to be above the law. Americans inclined to trust President Bush should realize, however, that the precedent set here will empower future presidents. Do we really want all future presidents to have the power to disobey basic criminal laws?

President Bush's NSA program is illegal and needs to be stopped. Even more importantly, Congress must take a strong stand against Bush's dangerous reading of the Constitution.

Vice President Dick Cheney said he didn't immediately disclose his hunting accident because he wanted the confusing details to come out right. Instead, authorized accounts came out slowly — and often still wrong.

The result: a week of shifting blame, belatedly acknowledged beer consumption (not "zero" drinking after all) and evolving discrepancies in how the shooting happened, its aftermath and the way it was told to the nation.

"There's a reason they call this crisis management," said corporate damage-control specialist Eric Dezenhall, "and that's because it's a mess."

___

BLAME

In the first days after the vice president wounded attorney Harry Whittington while shooting at quail last Saturday in Texas, blame was placed on the victim for not announcing his presence to fellow hunter Cheney.

"The vice president did everything right," Katharine Armstrong, the ranch owner approved by Cheney to disclose the accident, said Monday. Whittington, 78, should have shouted that he was rejoining the hunting group after drifting off to retrieve a downed bird. "The mistake exposed him to getting shot," she said. "It's incumbent on him. He did not do that."

The White House picked up on that theme the same day in attempting to deflect any responsibility from the vice president. "If I recall," Bush spokesman Scott McClellan said of Armstrong, "she pointed out that the protocol was not followed by Mr. Whittington, when it came to notifying the others that he was there."

The about-face came Wednesday when Cheney made his first public comment on the accident.

"It was not Harry's fault," he said. "You can't blame anybody else. I'm the guy who pulled the trigger and shot my friend."

___

DRINKING

Although there is no evidence that beer impaired Cheney's judgment, initial denials that he had consumed alcohol were wrong.

"No one was drinking," Armstrong said at the outset. "No, zero, zippo." She said the hunters washed down lunch with Dr Pepper. Later, she qualified her comments and said beer might have been in the cooler but she did not think anyone drank any.

The investigating officer from the Kenedy County sheriff's department, after interviewing Whittington in the hospital, reported that the victim "explained foremost there was no alcohol during the hunt."

Authorities did not investigate the accident until the next day. The Texas Parks and Wildlife accident report, dated two days after the shooting, checked "No" on the question of whether Cheney appeared under the influence of intoxicants. It did not address whether the hunters had been drinking at all. (The report also included a diagram depicting Whittington's wounds on the wrong side of his body.)

Cheney acknowledged Wednesday, "I had a beer at lunch" several hours before the group's afternoon hunt, asserting "nobody was under the influence."

___

VICTIM'S CONDITION

In the rush to assure everyone Whittington was "just fine," some important details were left out.

Initial reports had him treated at the scene, then taken by ambulance to the hospital, where in no time he was cracking jokes with the nurses. It turned out that after being taken to the emergency room of a local, small hospital, he was flown by helicopter to the intensive care unit of the larger hospital in Corpus Christi.

According to Armstrong's initial account of the accident scene: "He was talking. His eyes were open." Later, Cheney said that when he rushed up to the stricken man and talked to him, Whittington had one eye open and did not respond. He was, however, conscious.

Doctors said Tuesday that Whittington suffered a mild heart attack while in the hospital when one of the pellets migrated to his heart. He was released Friday.

___

LICENSE

Cheney did not have all his hunting papers in order, as suggested by the White House and initially stated by Texas authorities.

On Sunday, a spokesman for the Texas Parks and Wildlife Department said Cheney was legally hunting with a license he bought in November. While that was true, the department's accident report the next day stated that he was in violation of a law requiring him to have an upland game bird stamp.

___

DISCLOSURE

The accident raised questions about the flow of information into and out of the White House communications apparatus.

Asked why no one released news of the shooting on Saturday night, McClellan said "the vice president's office was working to make sure information got out" but that details were slow to reach Washington that evening.

Armstrong, for her part, said no one at the ranch even discussed releasing the news on Saturday.

She said her family realized Sunday morning that it would be a story and decided to call the local newspaper, the Corpus Christi Caller-Times. She said she then discussed news coverage with Cheney for the first time.

"I said, 'Mr. Vice President, this is going to be public, and I'm comfortable going to the hometown newspaper,'" she told The Associated Press. "And he said, 'You go ahead and do whatever you are comfortable doing.'"

___

TELLING WASHINGTON

McClellan said President Bush was told shortly before 8 p.m. EST Saturday that Cheney had shot Whittington, less than half an hour after Bush first heard there had a been an accident of some sort involving Cheney's hunting party. Confirmation that Cheney was the shooter was obtained when deputy chief of staff Karl Rove called Armstrong, McClellan said.

However, McClellan said he didn't personally know Cheney was the shooter until the next morning, about 6 a.m. EST Sunday, when he was awakened with the news.

He said he only knew the previous evening that someone in Cheney's party had been involved in a hunting accident.

Friday, February 17, 2006

****Today, Fox News announced that the U.S. government will be publicly broadcasting the Interrogation of Saddam Hussein. The Bush Administration has just signed a 1 billion dollar no-bid no-audit cash contract with Halliburton to build an interrogation center/television studio to broadcast the event.

White House Spokesman Scott McClellan confirmed the reports, “We have been taking a beating publicly and accused of torturing prisoners around the world. So we are going to show exactly the types of interrogation techniques we use, and we are going to broadcast them uninterrupted and unedited. As the President has said, We Do Not Torture. We are going to use our best interrogation techniques on Saddam and we will show the public that we do not torture.”

Fox News has announced a three man broadcast team of Sean Hannity, Rush Limbaugh and Anne Coulter to cover the event. Karen Hughes has signed on to be the "sideline" reporter to help Arab and Muslim viewers understand America's respect for human rights.

Scott McClellan confirmed that all of the interrogation techniques will be those approved by President Bush for use on terrorists. Saddam will first be taken to his cell naked and shackled to the floor in the fetal position. He will then be subjected to a week of sleep deprivation techniques consisting of extreme heat, extreme cold, loud noises, and stress positions. When Saddam begins to shit on himself, Coulter, Limbaugh and Hannity will explain to American Viewers that “Arabs all do that over there, so it’s not anything they should be concerned about.”

The real fun will begin when President Bush, Dick Cheney, Alberto Gonzales, Donald Rumsfeld, and Condoleeza Rice will personally conduct Saddam’s Waterboarding Interrogation. Waterboarding is a technique where the prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt. According to sources, CIA officers said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last over two minutes before begging to confess.

During this process, Saddam is expected to confess to being the Mastermind of the September 11 attacks, he will also confirm where he hid those Weapons of Mass Destruction, and he will confirm that it was he who in fact killed John F. Kennedy.

Senator John McCain will be present to explain to the viewers what it was like to be tortured, and he will express concern that what the Bush Administration is doing is not helpful. He will then pose for pictures with the President and attend a Republican Fundraiser After Party.

Democrat Joe Lieberman will also be present to represent the loyal opposition. He will be expected to explain to Americans why he supports the President.

Thursday, February 16, 2006

By Sebnem Arsu The New York Times MONDAY, FEBRUARY 13, 2006ISTANBUL The crowd cheered, clapped and whistled as the Turkish agent plunged the knife into the chest of the enemy commander.

"Valley of the Wolves - Iraq," which opened last week in movie theaters in Turkey, Austria and Germany, is a Rambo-like action story involving, in this case, Turkish gunmen who seek revenge against a tyrannical occupying army.

But in this version, the most expensive movie ever made in Turkey, the enemy is no oppressive third-world dictatorship. The commander's name is "Sam" - as in Uncle - and the opposing forces are Americans, who are being punished for offenses against Turkish as well as Iraqi pride and honor.

Sam William Marshall, played by Billy Zane, is portrayed as a sociopath, killing people without a second thought and claiming that he is doing God's will, a thinly veiled reference to statements by President George W. Bush about America's "crusade" for democracy in Iraq and the Middle East.

Indeed, while fictional, some of the movie is based on real events. The opening sequence portrays an incident that made headlines in 2003, when a group of Turkish special forces soldiers in Iraq was taken into custody by American marines. The Turks, mistaken for insurgents, were handcuffed and held with hoods over their heads. The incident angered many Turks.

Other scenes show ruthless marines killing Iraqis and soldiers mistreating inmates at Abu Ghraib prison. A Jewish-American doctor, played by Gary Busey, is shown as shipping inmates' organs to New York, London and Israel. All these, according to the screenwriter, Bahadir Ozdener, were inspired by real events.

Zane said he was not bothered by the movie's anti-American tone, adding that the horrors of war should be exposed.

"I acted in this movie because I'm a pacifist," he said in a televised interview. "I'm against all kinds of war."

Whatever its artistic merits, the movie, which has already broken Turkish box office records, has highlighted a growing discrepancy in how America is seen in Turkey.

Officially, the two governments have been enjoying much-improved relations after a low point in 2003, when Turkey refused to allow American troops to cross the country to invade Iraq. On the street, however, public opinion of America has been steadily declining since the invasion of Iraq, the revelations about the abuse at Abu Ghraib and the suspected transferring of Al Qaeda suspects to foreign countries to be tortured in secret prisons.

Yet since the invasion, Turkey has provided logistical support to American troops in Iraq from Incirlik Air Base and has contributed military personnel to the American-led mission in Afghanistan.

Washington has reciprocated by vocally supporting Turkey's bid for membership in the European Union and efforts to resolve the Cyprus conflict.

The issue becomes complicated, however, when it comes to the war on terror. Outwardly, the two countries are committed partners in fighting terrorism of all kinds.

But Turkey has been fighting with Kurdish separatists seeking independence since the 1980s.

Since the invasion of Iraq, the U.S. military has been reluctant to act against the Kurdish Workers Party and has allowed it to operate in northern Iraq, which has distressed many in Turkey. Essentially, Washington tolerates a de facto Kurdish state in northern Iraq.

"People think that the U.S. supports an independent Kurdish state in northern Iraq and therefore threatens the unity of Turkish land," said Nilufer Narli, a sociology professor at Bahcesehir University in Istanbul.

Popular opinion of the United States and its allies, including Israel, seems to be steadily declining. Anti-American novels, including one that portrayed a war between the United States and Turkey, have been selling briskly; Hitler's "Mein Kampf" became a best seller last year.

Narli believes that the perceived U.S. support for the Kurds is at the heart of this decline.

Despite its popularity, however, "Valley of the Wolves - Iraq" neither triggered widespread anti-American violence in the country nor urged people to take to the streets to protest the war in Iraq.

"It doesn't show anything that we did not already know," said Fahri Kaya, a 22-year-old security guard. "It was more like a group therapy that gave people a chance to let go of their negative feelings against what's been happening in Iraq as they shouted, clapped and cried."

The U.S. ambassador to Turkey, Robert Wilson, in a televised interview on NTV last week, acknowledged that it was only a movie made for entertainment, but he said he still was not pleased with the way America was portrayed. He highlighted the good relations that the two countries have shared.

Egemen Bagis, the former head of the Turkish American Businessmen's Association, agreed.

"Our alliance with the U.S. has very strong roots," he said. "A movie or a book just cannot destroy it."

The United States must close its detention facility at Guantanamo Bay because it is effectively a torture camp where prisoners have no access to justice, a U.N. report released Thursday concluded.

The White House rejected the recommendation.

The 54-page report summarizing an investigation by five U.N. experts accused the United States of practices that "amount to torture" and demanded detainees be allowed a fair trial or freed. The investigators did not visit the detention camp in Guantanamo Bay, Cuba.

"Those people should be released or brought before an independent court," Manfred Nowak, the U.N. investigator for torture, told The Associated Press. "That should not be done in Guantanamo Bay, but before ordinary U.S. courts, or courts in their countries of origin or perhaps an international tribunal."

The United States should allow "a full and independent investigation" at Guantanamo and also give the United Nations access to other detention centers, including secret ones, in Iraq, Afghanistan and elsewhere, Nowak said by telephone from his office in Vienna, Austria.

"We want to have all information about secret places of detention because whenever there is a secret place of detention, there is also a higher risk that people are subjected to torture," he said.